Obama Administration Urges Supreme Court to Uphold Affirmative Action

In October, the Supreme Court will hear an appeal on the issue, over which it has been closely split for decades.

The Obama administration weighed in on affirmative action for the first time at the Supreme Court on Monday, urging that university admissions preferences for qualified black and Latino students be upheld.

"Race is one of many characteristics (including socioeconomic status, work experience and other factors) that admissions officials may consider in evaluating the contributions that an applicant would make to the university," U.S. Solicitor Gen. Donald Verrilli Jr. said in his brief, siding with the University of Texas.

In October, the high court will hear the appeal of Abigail Fisher, a rejected white applicant who sued the Texas university alleging she was a victim of illegal racial discrimination.

The justices' decision to take the case spurred speculation that the court's conservatives were determined to end race-based affirmative action.

For decades, the court has been closely split on whether the Constitution and its guarantee of "equal protection of the laws" forbids state universities to give an edge to minority applicants.

When the court previously ruled on the issue, a 5-4 majority led by Justice Sandra Day O'Connor said universities had a "compelling interest" in achieving racial diversity on campus. Since then, O'Connor has retired and been replaced by the more conservative JusticeSamuel A. Alito Jr.

In the past, President Obama has given mixed signals on affirmative action. During the 2008 campaign, he said his two daughters should not receive preferences, because of their privileged background, but other students who faced disadvantages, including low-income whites, should get special consideration. Verrilli's brief defends the Texas university's focus on Latinos and African Americans because they were "substantially underrepresented in the student body."

The case is complicated by Texas' use of the so-called top 10% plan. After a federal appeals court declared affirmative action unconstitutional in the mid-1990s, the state opted to offer admission to the top 10% of the graduating classes from all of its high schools.

This "race neutral" policy succeeded in boosting the number of minority applicants. In 2004, Latinos made up 16.9% of the entering class and African Americans 4.5%.

That year, however, in reaction to Justice O'Connor's opinion, university officials decided to resume using race-based affirmative action for about one-fifth of the entering freshman class.

Defenders of the university say this "modest" consideration of race increases diversity and opens the door for some high-achieving minority applicants. The challengers say it is unjustified because the top 10% policy achieves substantial diversity without relying on race or ethnicity.

However the court rules, its decision is unlikely to affect the top state universities in California, Washington, Michigan or other states where ballot measures prohibit discrimination or preferential treatment based on race.

But University of California officials filed a brief telling the court that its campuses had tried "race neutral" policies to enroll more minorities since the 1996 passage of Proposition 209, but without much success. Results had been "limited and disappointing," they said.

Only eight justices will decide the Texas case. Justice Elena Kagan, who was Obama's solicitor general when the administration supported Texas in a lower court, will not participate. If the court were to split 4 to 4, the lower court's decision in favor of the University of Texas would stand.

While Monday's U.S. Supreme Court ruling on affirmative action has no immediate impact on Michigan's voter-approved ban on the practice, it offers hope to those who want the nation's high court to reinstate the ban when it hears its second affirmative-action case since last year.
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